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RULE 4 SHOULD BE USED SPARINGLY IN 2254/2255 CASES, 9TH HOLDS
A 28 USC § 2255 motion often seems to be stacked against the movant. The district court can throw it out on its own if the judge thinks it “plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief.” If the court tells the government to answer, the judge can then deny the motion without allowing for discovery or an evidentiary hearing. If there is a hearing, the court can then deny it.
So many ways to lose!
The court’s right to dismiss the § 2255 motion without even asking for a response from the prosecutor is enshrined in Rule 4 of the clumsily-named Rules Governing Section 2255 Proceedings. 2255. Rule 4 is a lot like Rule 4 of the Rules Governing Section 2254 Proceedings (except that in the § 2255 rules, a judge may also rely on “the record of prior proceedings,” something the Court does not have available to it in a 28 USC § 2254 review of a state habeas proceeding.
Pat Neiss filed a state habeas claim that his Montana conviction should be set aside because his lawyer was ineffective. He was denied by the state courts, so he filed a 28 USC § 2254 petition in district court. Thirteen days after he filed, the district court summarily dismissed Pat’s petition with prejudice, holding that Pat’s claim was not cognizable because his trial counsel “moved repeatedly, in different contexts, to suppress the evidence,” even though he failed to make the one suppression motion – a particularity claim – that would have worked.
The district court cited Strickland v, Washington’s statement that “Counsel’s decision to focus on certain aspects of these attacks rather than on others does not cause their performance to ‘f[a]ll below an objective standard of reasonableness.”
A 9th Circuit decision last week reversed the summary dismissal, warning judges to err on the side of the petitioner in applying Rule 4.
The Circuit held that Rule 4 permits summary dismissal of claims on the basis of lack of cognizability only where the allegations in the petition are vague, conclusory, palpably incredible, or patently frivolous or false.” Rule 4’s standard, the Court said, “essentially is whether the movant has made specific factual allegations that, if true, state a claim on which relief could be granted… Our case law has made clear that as long as a petition has any potential merit, it is not so frivolous or incredible as to justify summary dismissal under Rule 4. The legal term ‘frivolous’ is defined in Black’s Law Dictionary as ‘lacking a legal basis or legal merit; manifestly insufficient as a matter of law.’ And 9th Circuit case law is in accord.”
Here, the 9th said, Pat’s petition alleged that his trial counsel provided ineffective assistance when counsel waived a meritorious particularity objection to a search warrant. The Supreme Court has recognized that an ineffective assistance of counsel claim may be based on defense counsel’s failure to litigate a 4th Amendment claim competently. Thus, these allegations state a cognizable claim on which relief could be granted, the Circuit held.
Nothing on the face of Pat’s petition plainly showed that his particularity objection to the search warrant lacked merit as a matter of law or that trial counsel’s failure to object on that ground could not have prejudiced him. But rather than conducting this analysis, the district court ruled that regardless of whether a particularity challenge was made, counsel’s wide and repeated efforts to get the computer search evidence suppressed were objectively reasonable.”
At the summary dismissal stage,” the 9th held, “district courts must consider only whether a claim is frivolous, not whether it is ultimately—or likely—a winner or loser.”
Neiss v Bludworth, Case No. 22-35877, 2024 U.S. App. LEXIS 20752 (9th Cir., August 16, 2024)
– Thomas L. Root